in-re-the-marriage-of-alicia-d-day-and-christopher-l-day-upon-the ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0110
Filed October 28, 2015
IN RE THE MARRIAGE OF ALICIA D. DAY
AND CHRISTOPHER L. DAY
Upon the Petition of
ALICIA A. DAY, n/k/a ALICIA D. O’DELL,
Petitioner-Appellant,
And Concerning
CHRISTOPHER L. DAY,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Annette J.
Scieszinski, Judge.
Alicia O’Dell appeals the district court’s modification of visitation rights
granted to her former husband, Christopher Day. AFFIRMED.
Heather M. Simplot of Harrison, Moreland, Webber & Simplot, P.C.,
Ottumwa, for appellant.
James E. Brick of Brick Gentry, P.C., West Des Moines, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.
Alicia O’Dell appeals the district court’s modification of visitation rights
granted to her former husband, Christopher Day, asserting expanded visitation
was not warranted due to the lack of material change of circumstances. Noting
Alicia’s increased control over visitation opportunities, the district court found
additional visitation with Christopher would benefit the minor children. We agree
and affirm.
I. Background Facts and Procedure
Alicia and Christopher’s marriage was dissolved in 2009, by a decree
incorporating the parties’ stipulation. This appeal involves four specific points of
visitations as initially provided in the 2009 decree: (1) Christopher shall have
alternate weekends from 7:00 p.m. on Friday to 7:00 p.m. Sunday; (2) each party
shall have the children one-half of the Easter holiday each year; (3) Christopher
shall have the children Christmas Eve Day each year from 5:00 p.m. until 10:00
p.m. and Christmas Day each year from 2:00 p.m., and overnight until 10:00 a.m.
on December 26; and (4) summer visitation of three weeks to be exercised in no
more than one-week periods during the summer months that the children are not
in school.
The modification court made the following adjustments, which Alicia
contests: (1) the parties shall share alternate weekends from 3:30 p.m. on Friday
until 8:00 p.m. on Sunday; (2) Easter Day, the children shall be with Alicia from
8:00 a.m. to 11:00 a.m., and with Christopher from 11:00 a.m. until 8:00 p.m.;
(3) with regard to Christmas, in even years, Christopher shall have visitation from
10:00 p.m. December 24th until 2:00 p.m. on December 25th, and in odd years,
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he shall have visitation from 4:00 p.m. until 10:00 p.m. on December 24th and
from 2:00 p.m. December 25th until 12:00 noon on December 26th; and (4) with
regard to summer vacation, Christopher shall have visitation during alternate
weeks, from Monday at 8:00 a.m. until Monday at 8:00 a.m. beginning the first
full week that school is in recess, through the last full week of recess before
school starts in late summer. Alicia appeals.
II. Scope of Review
Our review of modification decisions is de novo. In re Marriage of Salmon,
519 N.W.2d 94, 95 (Iowa Ct. App. 1994). We recognize the reasonable
discretion of the trial court to modify visitation rights and will not disturb its
decision unless the record fairly shows it has failed to do equity. Id.To justify a change of visitation rights, the petitioner must show there has
been a change of circumstances since the divorce decree. Nicolou v. Clements,
516 N.W.2d 905, 906 (Iowa Ct. App. 1994). However, as compared to changes
in the child custody arrangements, the general rule is that a much less extensive
change of circumstances need be shown when visitation is at issue. Id. The
rationale of the above rule is that the best interest of a child ordinarily requires
continuing association with the noncustodial parent unless the contrary is clearly
shown. Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1973). Therefore, the
parent seeking to modify child visitation provisions of a dissolution decree must
establish by a preponderance of the evidence there has been a material change
in circumstances since the decree and the requested change in visitation is in the
best interests of the children. Salmon, 519 N.W.2d at 95–96.
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Additionally, because the district court has the advantage of hearing the
evidence first hand and observing the demeanor of the witnesses, its decision-
making process is greatly enhanced and not forgotten on appeal. In re Marriage
of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994).
III. Material Change of Circumstances
Alicia asserts Christopher has failed to show a material change of
circumstances since 2009, such that it would justify the court’s visitation
modifications. She posits that, if the court concludes this minimal change of
circumstances warrants modification, the number of people relitigating visitation
issues would create a backlog in the court system. Hence, her position is the
court has failed to do equity. Christopher responds he was forced to seek judicial
intervention as he was frequently being denied time with his children, which
leaves him at Alicia’s mercy in sharing parental guidance.
The modification court detailed the declining dynamics between Alicia and
Christopher. It noted a growing “communication deficit” fueled by Alicia wielding
tighter and tighter control as the children’s caregiver. Far from following the spirit
of the 2009 stipulation encouraging “such other and further visitations as the
parties may from time to time agree and that are in the best interest of the minor
children,” the modification court found Alicia exerted “arbitrary control” and was
“willing to shut Chris out of mainstream involvement as a parent figure.”
On our review of the record, and with deference to the district court, we
agree. While Alicia is correct that the court cannot be asked to solve every
dispute that arises between divorced parties, there comes a point in some
relationships that require judicial intervention to serve the best interests of the
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children. In this case, all of the court’s observations and findings were geared
not to punish nor reward either parent but to ensure the minor children receive
the companionship and guidance of both parents. When faced with the behavior
of one parent attempting to thwart the involvement of the other, the court wisely
found a material change of circumstances and expanded the non-custodial
parent’s visitation rights. See Salmon, 519 N.W.2d at 95–96 (noting the visitation
schedule must be in the children’s best interests). We therefore affirm.
IV. Trial and Appellate Attorney Fees
Finally, Alicia claims the district court should have awarded her attorney
fees. We review for an abuse of discretion. In re Marriage of Sullins, 715
N.W.2d 242, 255 (Iowa 2006). The district court set forth the legal fees each
party had accrued to date, considered each party’s income, and noted both had
been well and efficiently represented. We agree with the court’s decision in this
regard, and consequently, we find no abuse of discretion. See id.Alicia also seeks appellate attorney fees.
Appellate attorney fees are not a matter of right, but rather rest in
this court’s discretion. Factors to be considered in determining
whether to award attorney fees include: “the needs of the party
seeking the award, the ability of the other party to pay, and the
relative merits of the appeal.”
Id. (citation omitted). Given these considerations, we decline to award Alicia
appellate attorney fees.
For these reasons, we affirm the order of the district court modifying the
visitation schedule for the parties’ two minor children.
AFFIRMED.